Lawson v. Commissioner of Social Security
Filing
21
MEMORANDUM OF DECISION, Ordered that The Final Decision of the Commissioner is AFFIRMED. The Clerk is directed to enter judgment for the Commissioner and close the case. Signed by Magistrate Judge Daniel C. Irick on 3/1/2017. (RN)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
TAMMY LAWSON,
Plaintiff,
v.
Case No: 6:15-cv-1128-Orl-DCI
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
MEMORANDUM OF DECISION
Tammy Lawson (Claimant) appeals to the District Court from a final decision of the
Commissioner of Social Security (the Commissioner) denying her applications for disability
insurance benefits and supplemental security income benefits. Doc. 1; R. 1-7, 206-18. Claimant
argued that the Administrative Law Judge (the ALJ) erred by: 1) “failing to adequately weigh and
consider the opinion of the [C]laimant’s treating physicians and failing to adequately consider all
of the pertinent evidence;” and 2) posing a hypothetical to the Vocational Expert that did not
accurately reflect Claimant’s limitations. Doc. 18 at 2-3. For the reasons set forth below, the
Commissioner’s final decision is AFFIRMED.
I.
STANDARD OF REVIEW
“In Social Security appeals, [the court] must determine whether the Commissioner’s
decision is ‘supported by substantial evidence and based on proper legal standards.’” Winschel v.
Comm’r of Soc. Sec., 631 F.3d 1176, 1178 (11th Cir. 2011) (citations omitted).
The
Commissioner’s findings of fact are conclusive if supported by substantial evidence. 42 U.S.C. §
405(g). Substantial evidence is more than a scintilla – i.e., the evidence must do more than merely
create a suspicion of the existence of a fact, and must include such relevant evidence as a
reasonable person would accept as adequate to support the conclusion. Foote v. Chater, 67 F.3d
1553, 1560 (11th Cir. 1995) (citing Walden v. Schweiker, 672 F.2d 835, 838 (11th Cir. 1982) and
Richardson v. Perales, 402 U.S. 389, 401 (1971)). Where the Commissioner’s decision is
supported by substantial evidence, the District Court will affirm, even if the reviewer would have
reached a contrary result as finder of fact, and even if the reviewer finds that the evidence
preponderates against the Commissioner’s decision. Edwards v. Sullivan, 937 F.2d 580, 584 n.3
(11th Cir. 1991); Barnes v. Sullivan, 932 F.2d 1356, 1358 (11th Cir. 1991). The Court must view
the evidence as a whole, taking into account evidence favorable as well as unfavorable to the
decision. Foote, 67 F.3d at 1560. The District Court “‘may not decide the facts anew, reweigh
the evidence, or substitute [its] judgment for that of the [Commissioner].’” Phillips v. Barnhart,
357 F.3d 1232, 1240 n.8 (11th Cir. 2004) (quoting Bloodsworth v. Heckler, 703 F.2d 1233, 1239
(11th Cir. 1983)).
II.
ANALYSIS
A. Failure to Weigh Opinions and Consider Pertinent Evidence
At step four of the sequential evaluation process, the ALJ assesses the claimant’s residual
functional capacity (RFC) and ability to perform past relevant work. Phillips, 357 F.3d at 1238.
“The residual functional capacity is an assessment, based upon all of the relevant evidence, of a
claimant’s remaining ability to do work despite his impairments.” Lewis v. Callahan, 125 F.3d
1436, 1440 (11th Cir. 1997). The ALJ is responsible for determining the claimant’s RFC. 20
C.F.R. §§ 404.1546(c); 416.946(c). In doing so, the ALJ must consider all relevant evidence,
including, but not limited to, the medical opinions of treating, examining, and non-examining
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medical sources. 20 C.F.R. §§ 404.1545(a)(1), (3); 416.945(a)(1), (3); Rosario v. Comm’r of Soc.
Sec., 877 F. Supp. 2d 1254, 1265 (M.D. Fla. 2012).
The weighing of treating, examining, and non-examining physicians’ opinions is an
integral part of steps four and five of the sequential evaluation process. In Winschel v. Comm’r of
Soc. Sec., 631 F.3d 1176 (11th Cir. 2011), the Eleventh Circuit stated that “‘Medical opinions are
statements from physicians and psychologists or other acceptable medical sources that reflect
judgments about the nature and severity of [the claimant’s] impairment(s), including [the
claimant’s] symptoms, diagnosis and prognosis, what [the claimant] can still do despite
impairment(s), and [the claimant’s] physical or mental restrictions.’” Id. at 1178-79 (quoting 20
C.F.R. § 404.1527(a)(2)) (alterations in original). “[T]he ALJ must state with particularity the
weight given to different medical opinions and the reasons therefor.” Id at 1179 (citing Sharfarz
v. Bowen, 825 F.2d 278, 279 (11th Cir. 1987)). “In the absence of such a statement, it is impossible
for a reviewing court to determine whether the ultimate decision on the merits of the claim is
rational and supported by substantial evidence.” Id. (quoting Cowart v. Schwieker, 662 F.2d 731,
735 (11th Cir. 1981)).
The ALJ must consider a number of factors in determining how much weight to give each
medical opinion, including: 1) whether the physician has examined the claimant; 2) the length,
nature, and extent of the physician’s relationship with the claimant; 3) the medical evidence and
explanation supporting the physician’s opinion; 4) how consistent the physician’s opinion is with
the record as a whole; and 5) the physician’s specialization. 20 C.F.R. §§ 404.1527(c); 416.927(c).
A treating physician’s opinion must be given substantial or considerable weight, unless good cause
is shown to the contrary. Winschel, 631 F.3d at 1179; see also 20 C.F.R. §§ 404.1527(c)(2);
416.927(c)(2) (giving controlling weight to the treating physician’s opinion unless it is inconsistent
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with other substantial evidence). “Good cause exists when the: (1) treating physician’s opinion
was not bolstered by the evidence; (2) evidence supported a contrary finding; or (3) treating
physician’s opinion was conclusory or inconsistent with the doctor’s own medical records.”
Winschel, 631 F.3d at 1179 (quotation marks omitted).
Here, Claimant first argued that “the ALJ failed to state the weight he assigned to any of
[Claimant’s] treating/examining physician.”
Doc. 18 at 12.
However, Claimant did not
specifically cite to a treating physician or purported medical opinion that the ALJ purportedly
failed to weigh.1 Id. at 8-15. Nor did Claimant explain or argue how the purported failure to weigh
the treating physicians’ purported medical opinions undermined the ALJ’s decision. Id. Because
Claimant did not specifically argue what purported medical opinions the ALJ failed to weigh and
how said opinions undermined the ALJ’s decision, the Court finds that Claimant abandoned the
argument that “the ALJ failed to state the weight he assigned to any of [Claimant’s]
treating/examining physician.” See, e.g., Jacobus v. Comm’r of Soc. Sec., No. 15-14609, 2016
WL 6080607, at *3 n.2 (11th Cir. Oct. 18, 2016) (stating that claimant’s perfunctory argument was
arguably abandoned); Gombash v. Comm’r of Soc. Sec., 566 Fed. App’x. 857, 858 n.1 (11th Cir.
2014) (stating that the issue was not properly presented on appeal where claimant provided no
supporting argument); NLRB v. McClain of Ga., Inc., 138 F.3d 1418, 1422 (11th Cir. 1998)
(“Issues raised in a perfunctory manner, without supporting arguments and citation to authorities,
are generally deemed to be waived.”); Gaskey v. Colvin, No. 4:12-CV-3833-AKK, 2014 WL
1
The Court notes that although Claimant did specifically discuss the medical records of Dr. Evans
E. Amune, Dr. Stephane Lavoie, and Dr. Royce Hood, it was not clear from Claimant’s argument
whether they were the treating physicians to which Claimant was referring. In addition, the Court
notes that Claimant did not identify which of their statements Claimant purported to be medical
opinions that needed to be weighed.
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4809410, at *7 (N.D. Ala. Sept. 26, 2014) (refusing to consider claimant’s argument when
claimant failed to explain how the evidence undermined the ALJ’s decision) (citing Singh v. U.S.
Atty. Gen, 561 F.3d 1275, 1278 (11th Cir. 2009) (“[A]n appellant’s simply stating that an issue
exists, without further argument or discussion, constitutes abandonment of that issue and precludes
our considering the issue on appeal.”)); Amazing Grace Bed & Breakfast v. Blackmun, No. 090298-WS-N, 2011 WL 606126, at *3 (S.D. Ala. Feb. 11, 2011) (“‘Judges are not like pigs hunting
for truffles buried in briefs.’ An issue must be ‘fairly presented’ in order to trigger consideration,
and a glancing reference without discussion or legal authority does not meet that standard.”) (citing
Smith v. Sec’y, Dep’t of Corr., 572 F.3d 1327, 1352 (11th Cir. 2009)).
Regardless, to the extent that Claimant was arguing that the ALJ failed to weigh the
purported medical opinions contained within the medical records of Dr. Evans E. Amune, Dr.
Stephane Lavoie, and Dr. Royce Hood, the Court finds that any such failure was harmless. The
Court has reviewed the medical records of Dr. Amune, Dr. Lavoie, and Dr. Hood, and to the extent
the records cited to by Claimant contained any medical opinions, such medical opinions did not
directly contradict the ALJ’s RFC determination, which provided as follows:
After careful consideration of the entire record, I find that the claimant has the
residual functional capacity to perform light work2 as defined in 20 CFR
404.1567(b) and 416.967(b) with limitations. The claimant requires a sit/stand
option in which she may adjust or alternate her position every 30 minutes; and she
is limited to only occasional postural movements otherwise (i.e., bending,
balancing, stooping, squatting, crouching, crawling, or kneeling). The claimant is
2
“Light work involves lifting no more than 20 pounds at a time with frequent lifting or carrying
of objects weighing up to 10 pounds. Even though the weight lifted may be very little, a job is in
this category when it requires a good deal of walking or standing, or when it involves sitting most
of the time with some pushing and pulling of arm or leg controls. To be considered capable of
performing a full or wide range of light work, you must have the ability to do substantially all of
these activities. If someone can do light work, we determine that he or she can also do sedentary
work, unless there are additional limiting factors such as loss of fine dexterity or inability to sit for
long periods of time.” 20 C.F.R. §§ 404.1567(b); 416.967(b).
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precluded from overhead reaching; no more than frequent handling/fingering with
her right dominant hand; and she must avoid concentrated exposure to vibrations.
The claimant is limited to performing simple, routine and repetitive tasks; she can
relate adequately to supervisors, but is limited to only occasional contact with coworkers or general public; and she is able to deal with the changes in a routine work
setting.
R. 28. Therefore, the ALJ’s purported failure to weigh any such purported medical opinions was
harmless error.3 See, e.g., Wright v. Barnhart, 153 F. App’x 678, 684 (11th Cir. 2005) (per curiam)
(failure to weigh a medical opinion is harmless error if the opinion does not directly contradict the
ALJ’s RFC determination); Caldwell v. Barnhart, 261 F. App’x 188, 190 (11th Cir. 2008) (per
curiam) (similar).
Claimant’s second argument was that the ALJ erred by assigning persuasive weight to the
opinion of Dr. Robert Steele.4 Doc. 18 at 8-15. Specifically, Claimant argued that the ALJ so
erred because Dr. Steele reviewed Claimant’s file in April 2012, and thus did not consider any
medical records from after April 2012, including medical records from Dr. Amune, Dr. Lavoie,
and Dr. Hood. Id. at 9-12. Claimant did not present any specific argument to explain how
Claimant’s medical records from after April 2012 materially differed from the medical records
3
The Court notes that the ALJ did not specifically assign a weight to Rebecca Cicchetti, MSPT’s
statement that Claimant’s impairments limited Claimant’s dressing, bathing, reaching, driving,
lifting, carrying, and working. R. 24-36, 695. To the extent that Ms. Cicchetti’s statement was an
opinion that needed to be weighed, the ALJ’s failure to weigh the statement was harmless error.
The Court finds that Ms. Cicchetti’s statement does not directly contradict the ALJ’s RFC
determination, which limited Claimant to light work with only occasional postural movements,
and precluded Claimant from overhead reaching and frequent handling or fingering with
Claimant’s dominant hand. R. 28; See, e.g., Wright, 153 F. App’x at 684 (per curiam) (failure to
weigh a medical opinion is harmless error if the opinion does not directly contradict the ALJ’s
RFC determination). The Court further notes that Claimant presented no argument to suggest that
Ms. Cicchetti’s statement somehow contradicted the RFC determination.
4
The Court notes that the ALJ assigned persuasive weight to Dr. Steele’s opinion only to the
extent that the opinion was consistent with the RFC. R. 33.
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that Dr. Steele reviewed. Id. at 8-15. Nor did Claimant argue that the ALJ failed to consider
Claimant’s medical records or other pertinent evidence when assigning persuasive weight to Dr.
Steele’s opinion.5 Id.
The Commissioner argued that the ALJ did not err by assigning persuasive weight to Dr.
Steele’s opinion. Doc. 19 at 4-12. Specifically, the Commissioner argued that the ALJ was aware
that Dr. Steele had reviewed Claimant’s medical records in April 2012, and that the ALJ
specifically discussed and considered Claimant’s medical records from Dr. Amune, Dr. Lavoie,
and Dr. Hood. Id.
In his decision, the ALJ noted that Dr. Steele was a non-examining State agency medical
consultant that reviewed Claimant’s medical records in April 2012. R. 33. After having previously
discussed in his decision Claimant’s medical records that post-dated April 2012 (including
Claimant’s medical records from Dr. Amune and Dr. Hood), the ALJ then found that Dr. Steele’s
medical assessment was generally consistent with the medical evidence of record as a whole, and
determined that Dr. Steele’s opinion was entitled to persuasive weight.6 R. 30-33. Nevertheless,
5
Claimant’s sole argument appears to be that the ALJ erred by assigning persuasive weight to Dr.
Steele’s opinion because Dr. Steele had not considered all of Claimant’s medical records.
However, to the extent that Claimant is attempting to argue that the ALJ failed to consider pertinent
evidence in Claimant’s medical records, as was suggested by Claimant in her issue statement, said
argument has been waived because Claimant failed to specifically argue that the ALJ failed to
consider pertinent evidence, and because Claimant failed to cite to any such pertinent evidence
that the ALJ purportedly failed to consider. See, e.g., Jacobus, 2016 WL 6080607, at *3 n.2
(stating that claimant’s perfunctory argument was arguably abandoned). Regardless, based upon
a review of the record, the Court finds that the ALJ considered the pertinent evidence that postdated April 2012.
6
The Court notes that the ALJ did not specifically refer to Dr. Lavoie. R. 30-33. However, the
ALJ did specifically discuss the records of Dr. Paul Goldberg, who performed the MRI that Dr.
Lavoie requested. R. 30, 459-82. Dr. Goldberg’s records were contained in the same exhibit as
Dr. Lavoie’s records. R. 459-82.
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the ALJ found that Claimant was somewhat more limited than Dr. Steele’s opinion indicated
because of credible objective evidence and hearing testimony regarding cervical spine disorders
and right limb pain. R. 33.
Upon review of the record, the Court finds that the ALJ’s decision to give persuasive
weight to Dr. Steele’s opinion was supported by substantial evidence. In finding that Dr. Steele’s
opinion was generally consistent with the record as a whole and was entitled to persuasive weight,
the ALJ noted the fact that Dr. Steele had “particularly noted the claimant’s physical exams’ results
and relevant diagnostic findings . . . ; and [had] referenced the claimant’s pertinent medical history,
subjective complaints, and treatment records received from treating physicians/medical
specialists.” Id. Nothing contained in the medical records that post-dated April 2012 was of such
significance as to render erroneous the ALJ’s determination that Dr. Steele’s opinion was generally
consistent with the medical evidence of record as a whole.7 In addition, it is apparent from his
decision that the ALJ considered the medical records that post-dated April 2012 when determining
that Dr. Steele’s opinion was generally consistent with the medical evidence of record. R. 30-33.
It is the ALJ’s duty to examine the evidence and resolve conflicting medical records. See Powers
v. Heckler, 738 F.2d 1151, 1152 (11th Cir. 1984) (citation omitted). Where the ALJ’s judgment
was supported by substantial evidence, as it was here, the Court will not reweigh the evidence and
substitute its judgment for that of the ALJ’s. See Phillips, 357 F.3d at 1240 n.8 (quoting
Bloodsworth, 703 F.2d at 1239).
7
The Court notes that Claimant presented no argument to explain how the medical records that
post-dated April 2012 were somehow materially different from the medical records that pre-dated
April 2012. Doc. 18 at 8-15.
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Moreover, even to the extent that Dr. Steele’s opinion was rendered errant by the medical
records that post-dated April 2012, the ALJ’s decision to assign Dr. Steele’s opinion persuasive
weight would have been harmless error. The ALJ did not adopt Dr. Steele’s opinion wholesale.8
R. 33. Rather, the ALJ found, “based upon the credible objective evidence and hearing testimony,”
that Claimant was more limited than Dr. Steele opined. Id. As such, the ALJ adjusted the RFC in
accordance with the medical records and Claimant’s testimony to provide for more severe
limitations than suggested by Dr. Steele. Id. The Court finds that the ALJ’s RFC determination
was supported by substantial evidence, and that any error in assigning persuasive weight to Dr.
Steele’s opinion was harmless.9
B. Hypothetical Question to Vocational Expert (VE)
At step five of the sequential evaluation process, once the claimant has proven that the
claimant can no longer perform past relevant work, the burden shifts to the Commissioner “to show
the existence of other jobs in the national economy which, given the claimant’s impairments, the
claimant can perform.” Jones v. Apfel, 190 F.3d 1224, 1228-30 (11th Cir. 1999) (quoting Hale v.
Bowen, 831 F.2d 1007, 1011 (11th Cir. 1987)). An ALJ may rely on the testimony of a VE in
determining whether the claimant can perform other jobs in the national economy. Id. at 1229.
The ALJ is required to pose hypothetical questions that are accurate and that include all of the
claimant’s functional limitations. Pendley v. Heckler, 767 F.2d 1561, 1563 (11th Cir. 1985).
However, the ALJ need not include “each and every symptom” of the claimant’s impairments,
8
The ALJ stated as follows: “I accord Dr. Steele’s medical opinion persuasive weight to the
extent such remains consistent [with] the [RFC] assessment.” R. 33.
9
The Court further notes that Claimant presented no argument to suggest that the ALJ’s RFC
determination was not supported by substantial evidence other than to argue that the ALJ erred by
giving persuasive weight to Dr. Steele’s opinion. Doc. 18 at 8-15.
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Ingram v. Comm’r of Soc. Sec. Admin., 496 F.3d 1253, 1270 (11th Cir. 2007), or medical “findings
. . . that the ALJ . . . properly rejected as unsupported” in the hypothetical question, Crawford v.
Comm’r of Soc. Sec., 363 F.3d 1155, 1161 (11th Cir. 2004). Where the ALJ relies on the VE’s
testimony at step five, but fails to include all the claimant’s functional limitations in the
hypothetical question, the final decision is not supported by substantial evidence. Pendley, 767
F.2d at 1562 (quoting Brenem v. Harris, 621 F.2d 688, 690 (5th Cir. 1980)).10
Here, Claimant argued that the ALJ improperly relied on the testimony of the VE after
posing a hypothetical question that did not adequately reflect Claimant’s limitations. Doc. 18 at
15-18. Claimant’s entire argument was premised upon the fact that the ALJ’s RFC determination
was not supported by substantial evidence.11 Id. However, as the Court explained above, the
ALJ’s RFC determination was supported by substantial evidence. Therefore, Claimant’s argument
is without merit.
III.
CONCLUSION
For the reasons stated above, it is ORDERED that:
1. The final decision of the Commissioner is AFFIRMED.
2. The Clerk is directed to enter judgment for the Commissioner and close the case.
10
In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), the Eleventh
Circuit adopted as binding precedent all the decisions of the former Fifth Circuit handed down
prior to the close of business on September 30, 1981.
11
Claimant did not argue that the ALJ’s RFC determination was inconsistent with the hypothetical
the ALJ posed to the VE. Doc. 18 at 15-18.
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DONE AND ORDERED in Orlando, Florida on March 1, 2017.
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Copies to:
Counsel of Record
The Court Requests that the Clerk
Mail or Deliver Copies of this order to:
The Honorable Gregory J. Froehlich
Administrative Law Judge
c/o Office of Disability Adjudication and Review
SSA ODAR Hearing Ofc.
8880 Freedom Xing Trl
Jacksonville, Florida 32256-1224
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